Court of Appeals of Missouri, Western District, Fourth Division
from the Circuit Court of Jackson County, Missouri The
Honorable Cory L. Atkins, Judge.
Before: Karen King Mitchell, Chief Judge, and Gary D. Witt
and Anthony Rex Gabbert, Judges.
King Mitchell, Chief Judge.
Norman and Marsha Eaton ("Tenants") appeal from the
lower court's grant of summary judgment in favor of
Fidelity Real Estate Company ("Landlord") on its
contract action against Norman and Eaton arising from a prior
landlord/tenant relationship. Tenants raise two claims on
appeal. First, they argue that the lower court improperly
granted summary judgment because Landlord failed to establish
a prima facie case demonstrating it was entitled to judgment
as a matter of law insofar as the documents attached to its
summary judgment motions were inconsistent with respect to a
material fact. Second, they argue that the lower court
improperly awarded attorneys' fees, costs, and interest
to Landlord in a nunc pro tunc order insofar as the
court's failure to initially award these items did not
constitute a clerical error or omission that could be
remedied by a nunc pro tunc order. We affirm.
September 12, 2017, Landlord filed a petition against
Tenants, alleging that Landlord and Tenants executed a lease
agreement on real property located in Kansas City, Missouri,
on March 13, 2006. According to the petition, Tenants vacated
the property on December 1, 2010. The petition further
alleged that Landlord conducted a walk-through of the
property on December 7, 2010, and discovered a variety of
needed repairs. Landlord alleged that, in the lease
agreement, Tenants agreed to be liable for such repairs.
Landlord claimed that Tenants failed to pay as agreed in the
lease and that Landlord sent Tenants a demand letter on
December 26, 2010. According to Landlord, Tenants failed to
make payment following the demand letter, so Landlord filed
its petition, seeking damages in the amount of $5, 693.52 for
the remaining balance owed on the lease; interest in the
amount of 9.00% per annum beginning January 21, 2011;
reasonable attorneys' fees and costs accrued and that
continued to accrue for the suit; unpaid costs and expenses
incurred and those that continued to accrue in the collection
and enforcement of Landlord's rights under the contract;
and post-judgment interest in the amount of 9.00% per
19, 2018, Landlord filed motions for summary judgment against
Tenants individually. On August 22, 2018, Tenant Norman filed a
response to Landlord's summary judgment motion, along
with suggestions in opposition. The same day, the lower court
entered judgments against each Tenant individually; the
judgments stated, in total:
Now on this 22[nd] day of August, 2018, the Court takes up
Plaintiff's First Motion For Summary Judgment Against
[Tenant], filed July 19, 2018. Upon review of the pleadings,
record, and relevant law, Judgment is GRANTED in favor of
Plaintiff in the amount of $5, 693.52, plus interest at the
statutory rate of 9% per annum pursuant to R.S.Mo.
Section 408.020, plus costs.
(Emphasis in original.)
September 4, 2018, Tenant Norman filed a Motion to Set Aside
the Judgment,  arguing that the lower court failed to
consider her timely filed response to Landlord's motion
for summary judgment. The lower court held a hearing on
September 12, 2018, after which it denied Tenant Norman's
week later, Landlord filed a "Motion for Nunc Pro Tunc
Amendment of the August 22nd 2018 Judgments," wherein
Landlord argued that the judgments were ambiguous with
respect to Landlord's request for pre-judgment interest
and omitted any ruling on Landlord's request for
attorneys' fees. In the motion, Landlord requested that
the lower court amend . . . the judgments to reflect the
Judgment is GRANTED in favor of Plaintiff in the amount of:
Interest to August 22, 2018:
Certified Mail Fees:
Process Service Fees Incurred:
$10, 669.79, plus post-judgment
interest at the rate of 9.00% per annum, and Court
costs incurred hereafter as authorized by
October 1, 2018, Tenant Norman filed an objection to
Landlord's motion, arguing that Landlord's motion was
improper insofar as the nunc pro tunc procedure is
permissible solely to correct clerical errors and not as a
vehicle to substantively change a judgment. On October 3,
2018, the lower court entered a single "Order Amending
August 22nd 2018 Judgments Nunc Pro Tunc," naming both
Tenants as defendants, wherein it repeated verbatim
Landlord's requested amendment. Tenants jointly filed a
notice of appeal on November 12, 2018.
addressing the merits of Tenants' appeal, we must first
address Landlord's contention that we lack appellate
jurisdiction. After Tenants filed their brief on appeal,
Landlord filed a motion to dismiss the appeal, arguing that
we lack appellate jurisdiction because Tenants' notice of
appeal was untimely. We disagree.
filing of a notice of appeal is jurisdictional."
Spicer v. Donald N. Spicer Revocable Living Tr., 336
S.W.3d 466, 471 (Mo. banc 2011) (quoting Berger v.
Cameron Mut. Ins. Co., 173 S.W.3d 639, 640 (Mo. banc
2005)). "If a notice of appeal is untimely, the
appellate court is without jurisdiction and must dismiss the
appeal." Id. (quoting Popular Leasing USA,
Inc. v. Universal Art Corp. of New York, 57 S.W.3d 875,
877 (Mo. App. E.D. 2001)). To be timely filed, a notice of
appeal must be filed within ten days of the underlying
judgment becoming final. § 512.050.
75.01 provides that 'the trial court retains control over
judgments during the 30-day period after entry of judgment
and may, after giving the parties an opportunity to be heard
and for good cause, vacate, reopen, correct, amend or modify
its judgments within that time period.'"
Spicer, 336 S.W.3d at 468 (quoting Rule
75.01). "After the expiration of the 30 days
provided by Rule 75.01, the trial court is divested of
jurisdiction, unless a party timely files an authorized
after-trial motion." Id. at 468-69 (emphasis
initial judgments were entered on August 22, 2018. These
judgments, however, were not final insofar as they failed to
dispose of all issues. "A judgment that does not dispose
of all of the issues pending in an adjudication is not a
final judgment." State ex rel. Kinder v.
Dandurand, 261 S.W.3d 667, 671 (Mo. App. W.D. 2008).
"If a judgment is not final, Rule 75.01 does not apply,
and the circuit court retains jurisdiction to enter a final
judgment disposing of all remaining issues."
Id. Here, the initial judgments did not address
Landlord's request for attorneys' fees, and
"[a]n unresolved claim for attorney's fees can
arrest the finality of a judgment" if the request was
properly pled in the petition. Ruby v. Troupe, 580
S.W.3d 112, 114 (Mo. App. W.D. 2019) (emphasis removed).
be awarded attorney's fees, a party must plead a basis
for an award of fees, in addition to simply including a
request for attorney's fees in its prayer for
relief." Id. at 115. "Attorney fees are
recoverable in two situations: when a statute specifically
authorizes recovery and when the contract
provides for attorney fees." Id. (quoting
Lucas Stucco & EIFS Design, LLC v. Landau, 324
S.W.3d 444, 445 (Mo. banc 2010)) (emphasis added). In its
petition, Landlord pleaded that "the Lease provides
[Tenants] may be liable for [Landlord's] collection costs
and attorneys' fees." The petition also sought
reasonable attorneys' fees in the prayer for relief. And
Landlord continued to pursue attorneys' fees through its
post-trial motion. As such, the issue of attorneys' fees
was properly pled and pursued, and required resolution by the
lower court before any judgment issued could be deemed final.
Because the August 22, 2018 judgments did not address
Landlord's request for attorneys' fees, they failed
to resolve all issues and therefore could not become final.
It was not until the court issued its October 3, 2018 order
amending the initial judgments that the court finally
resolved all pending issues. As such, only the October 3,
2018 order was capable of becoming a final judgment.
no authorized post-disposition motions were filed after this
order, per Rule 75.01, the October 3, 2018 order became final
30 days later, or November 2, 2018. Under § 512.050, the
notice of appeal was due ten days later, or November 12,
2018, which is the date Tenants filed their notice of appeal.
As such, it was timely. Landlord's motion to dismiss the
appeal for lack of appellate jurisdiction is denied.
raise two points on appeal. First, they argue that the lower
court erred in granting summary judgment because one of the
exhibits attached to one of Landlord's motions exhibited
internal inconsistencies with respect to material facts and,
therefore, Landlord failed to establish a prima facie case
that it was entitled to judgment as a matter of law. Second,
they argue that the lower court erred in amending the
original judgments through an order nunc pro tunc
because the errors in the original judgments were not merely